SCOTUS reins in WOTUS abuse … somewhat

The U.S. Supreme Court (SCOTUS) Tuesday acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

Muddy hoof print (Getty Images)

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps “include land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Paul Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama Administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama Administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

Sorry to go off topic here, but referring to a previous discussion, I felt that the loser in a civil suit should pay the lawyer fees for both parties. Well, apparently, this is indeed the situation, at least in some cases. A Colorado retailer fought a claim that they violated the Americans with Disabilities Act because they failed to include software allowing blind people to read their Web site. The judge forced the losing defendant to pay legal fees for both parties ($100,000 fees, $4,000 settlement). Can anyone find a case where the PLAINTIFF has to pay the defendant’s legal fees? I didn’t think so. At least requiring either loser to pay makes it an even playing field. http://blogs.wsj.com/law/2016/03/25/court-orders-company-to-make-website-accessible-to-the-blind/

In California, the California Supreme Court has ruled that Plaintiffs are entitled to attorneys fees when they are the prevailing party because the ADA does not preclude such awards, and the analogous California Law (The “Disabled Persons Act”) specifically provides for a mandatory award of those fees to a prevailing party.

And since we had this discussion before, I won’t go into all the reasons why making “the loser” in a court case pay the attorneys fees of the prevailing party would wreck the system for is little guys, I won’t go into it again.

Thanks. I’m probably one of the few people that would consider it interesting reading. One mystery though: How can even the most imaginative attorney concoct $130,000 in fees for determining whether a four inch step was required, especially when one considers that every businessman has to make these decisions right and left without pay? No wonder we hate lawyers.

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